Unsuccessful nominations to the Supreme Court of the United States

Justices of the Supreme Court of the United States are nominated by the President and are then confirmed by the Senate. Presidential administrations are listed below with any unsuccessful Supreme Court nominees—that is, individuals who were nominated and who either declined their own nomination, failed the confirmation vote in the Senate, or whose nomination was withdrawn by the president.

As of 2010, 151 people have been nominated to the U.S. Supreme Court. Twenty-nine nominees (including one nominated for promotion) have been unsuccessful on at least the first try.

George Washington

George Washington nominated six inaugural candidates to the Supreme Court in 1789. All took office except for Robert H. Harrison, who declined to serve. The seat remained empty until the confirmation of James Iredell in 1790.[1]

Washington nominated William Paterson for the Supreme Court on February 27, 1793.[2] The nomination was withdrawn by the President the following day. Washington had realized that since the law establishing the positions within the Supreme Court had been passed during Paterson's current term as a Senator (a post he had resigned in November 1790 after being elected Governor of New Jersey) the nomination was a violation of Article I, Section 6 of the Constitution. Washington re-nominated Paterson to the Court on March 4, 1793, after Patterson's term as Senator had expired, and Patterson was confirmed by the Senate.[2]

The nomination of John Rutledge as Chief Justice was rejected by a vote of 10–14 on Dec 15, 1795. Rutledge's strident and vocal opposition to the Jay Treaty may have been the main reason for his rejection. Because he had been a recess appointment, Rutledge served as Chief Justice for one term.[3] Washington nominated Associate Justice William Cushing for the position, but Cushing declined the role.[1] Washington then successfully nominated Oliver Ellsworth to the position.[1]

John Adams

After Oliver Ellsworth decided to resign from the position of Chief Justice, Adams sought to replace Ellsworth with John Jay, who had been the first Chief Justice. Jay was formally nominated, but turned down the position. Adams then successfully nominated his Secretary of State, John Marshall.[4]

James Madison

When William Cushing died, Madison nominated Levi Lincoln, Sr. on January 2 1811. Lincoln declined the nomination.[5] Alexander Wolcott was then nominated, but was rejected by a vote of 9–24 on February 13, 1811.[5] After John Quincy Adams declined a nomination, Madison was finally successful in filling the seat with his appointment of Joseph Story.[1]

John Quincy Adams

Adams nominated John J. Crittenden on December 18, 1828. The Senate postponed the vote on his confirmation, by a vote of 23–17, on February 12, 1829. The Senate did not explicitly vote to "postpone indefinitely", but the resolution did have that effect.[6] President Andrew Jackson instead filled the position.[1]

Andrew Jackson

Jackson nominated Roger B. Taney on January 15, 1835 to be an Associate Justice. A resolution was passed by a Senate vote of 24–21 on March 3, 1835 to postpone the nomination indefinitely.[7] Jackson nominated Taney again on December 28, 1835. After the political composition of the Senate changed the next year, Taney was confirmed as Chief Justice March 15, 1836.[7]

In 1837, Jackson nominated William Smith and John Catron to newly-created seats. Both were confirmed, but Smith declined to serve. Later that year, President Van Buren appointed John McKinley to fill the vacancy.[1]

John Tyler

John Tyler experienced difficulty in obtaining approval of his nominees due to his lack of political support in the Senate.[8]

John C. Spencer was nominated on January 9, 1844 and his nomination was defeated by a vote of 21–26 on January 31, 1844. Reuben H. Walworth was nominated on March 13, 1844, and a resolution to table the nomination passed on a 27–20 vote on June 15, 1844. The nomination was withdrawn from the Senate on Jun 17, 1844. Edward King was nominated on June 5, 1844. A resolution to table the nomination passed by a vote of 29–18 on June 15, 1844. No other action was taken on this nomination.[8]

The same day that Walworth's nomination was withdrawn, Spencer was re-submitted, but there is no record of debate and a letter from the President withdrawing the nomination was received on the same day. Walworth was then re-nominated later that same day, but the motion to act on the nomination in the Senate was objected to, and no further action was taken.[8]

Walworth and King were re-nominated on December 10, 1844, but both nominations were tabled on January 21, 1845. Walworth's nomination was withdrawn on February 6, 1845, and King's two days later. John M. Read was nominated on February 8, 1845 and there was a motion to consider the nomination in the Senate on January 21, 1845, but the motion was unsuccessful and no other action was taken.[8]

James K. Polk

After Henry Baldwin's death in 1844, Polk nominated James Buchanan, who declined the nomination.[9] Polk then nominated George W. Woodward, but the Senate rejected him by a vote of 20–29.[9] Baldwin was finally replaced by Robert Cooper Grier in 1846.[1]

Millard Fillmore

Millard Fillmore made three nominations to replace John McKinley, nominating Edward A. Bradford, George Edmund Badger, and William C. Micou, but the Senate did not take action on any of the nominees. President Pierce filled the vacancy with John Archibald Campbell.[1]

James Buchanan

Buchanan nominated Jeremiah S. Black to the court in 1861 to replace Peter Vivian Daniel. The Senate voted 25–26 against confirming him.[10] President Lincoln filled the seat with Samuel Freeman Miller in 1862.[1]

Andrew Johnson

Two justices died in office during Johnson's administration, James Moore Wayne and John Catron. The United States Congress, however, passed the Judicial Circuits Act of 1866, which provided for a gradual elimination of seats until only seven were left.[11] Chief Justice Salmon P. Chase had urged for this reduction in the hopes that it would result in an increase of the justices' salaries, which, ironically, did not happen until Congress restored the size of the court to nine members in 1871. Johnson had nominated Henry Stanbery to be an Associate Justice, but due to the reduction of seats, this nomination was nullified.[12]

Ulysses S. Grant

Ulysses S. Grant nominated Ebenezer R. Hoar to a new seat on the court. The Senate rejected this nomination by a vote of 24–33.[13] Grant successfully nominated Joseph Bradley for the seat.[1]

Grant also nominated Edwin M. Stanton, former Attorney General and Secretary of War to the court.[14] The nomination was eventually confirmed, but Stanton died before he was commissioned.[15] Grant then successfully nominated William Strong.[1]

Grant nominated George Henry Williams to be Chief Justice of the United States in 1873, but he later withdrew from consideration.[16] Prior to withdrawal of consideration, the Senate Judiciary Committee declined to recommend confirmation to the entire Senate.[17] Grant then nominated Caleb Cushing for Chief Justice on January 9, 1874, but despite Cushing's great learning and eminence at the bar, his anti-war record and the feeling of distrust experienced by many members of the U.S. Senate on account of his inconsistency, aroused such vigorous opposition that his nomination was withdrawn on January 13, 1874.[18] Grant was successful with his third nomination of Morrison Waite.[1]

Rutherford B. Hayes

Early in 1881, President Rutherford B. Hayes nominated Thomas Stanley Matthews for the position of Associate Justice. Matthews was a controversial nominee due to his close ties to the railroad industry,[19] and as the nomination came near the end of Hayes's term, the Senate did not act on it. However, upon succeeding Hayes, incoming President James A. Garfield (who, like Hayes, was a Republican) renominated Matthews, and the Senate confirmed him by a vote of 24 to 23, the narrowest confirmation for a successful U.S. Supreme Court nominee in history. He served on the Court until his death in 1889.[20][21]

Grover Cleveland

In Grover Cleveland's second term, Associate Justice Samuel Blatchford died. This seat was traditionally held by a New Yorker. By the long tradition of Senatorial courtesy, other Senators deferred to the nominee's home state senator when evaluating his nomination. The Senator from New York at the time was David B. Hill, a political rival of Cleveland's. Hill had lost the Democratic nomination for the President to Cleveland in 1892. Cleveland's first two nominees were not confirmed by the Senate. The nomination of William Hornblower from New York was rejected by the Senate by a vote of 24–30 on January 15, 1894.[1] Cleveland's follow-up nominee Wheeler Hazard Peckham, another New Yorker, was also rejected by the Senate, 32–41, on February 16, 1894.[1] Cleveland finally got around Hill by nominating a sitting Senator, Edward Douglass White of Louisiana, to the court. His nomination was approved.

Warren Harding

President Warren Harding nominated Pierce Butler to the Supreme Court in 1922, but the Senate refused to consider his nomination, in part due to Butler's advocacy for railroad interests. However, Harding re-submitted the nomination later in the year, and Butler was confirmed in a 61-8 vote.[19]

Herbert Hoover

On May 7, 1930, Herbert Hoover's nomination of Appellate Judge John J. Parker for the Supreme Court was rejected by a vote of 39–41.[22] Parker was nominated to replace Edward Terry Sanford. The American Federation of Labor opposed Parker for his rulings that were favorable towards yellow dog contracts and the NAACP opposed Parker due to concerns about Parker's racial views.[23] Hoover attempted to appeal to Southern Democratic Senators to vote for Parker, who was from North Carolina, but Hoover was unable to win enough Democratic votes to make up for Republican defections.[23] Hoover's second nominee, Owen J. Roberts, was confirmed by the Senate.[1]

Dwight Eisenhower

President Dwight D. Eisenhower nominated John Marshall Harlan II in 1954, but his nomination was not reported out of the judiciary committee, in part due to opposition to his purported "ultra-liberal" views. Eisenhower re-nominated Harlan in 1955, and the Senate confirmed him in a 71-11 vote.[19]

Lyndon B. Johnson

Johnson nominated Abe Fortas, then an associate justice, for Chief Justice. Fortas would have succeeded Earl Warren, who had decided to retire. Controversy ensued regarding Fortas's extrajudicial activities, and at Fortas's request, Johnson withdrew the nomination prior to a vote of the full Senate.[24] Fortas's nomination was also opposed by many Senators who opposed the rulings of the Warren Court.[19] President Nixon instead filled the vacancy caused by Warren's retirement with Warren Burger.

When Johnson nominated Fortas, he also nominated Homer Thornberry to fill Fortas' seat. Since Fortas withdrew his name from the Chief Justice nomination, but maintained his seat as an Associate Justice (with Earl Warren continuing as Chief Justice), the nomination of Thornberry was void. He was never voted on by the Senate.[25]

Richard Nixon

When Abe Fortas resigned in 1969 because of a scandal separate from his Chief Justice bid, Nixon nominated Clement Haynsworth, a Southern jurist. His nomination was rejected by the Senate by a vote of 45–55 on November 21, 1969[26] due to concerns about Haynsworth's civil rights record and perceived ethical lapses.[19] In response, Nixon nominated G. Harrold Carswell, a Southerner with a history of supporting segregation and opposing women's rights. The Senate rejected his nomination 45 to 51 on April 8, 1970 following much pressure from the Civil Rights and Feminist movements.[27] Nixon's third nominee for the Fortas vacancy was Harry Blackmun, who was confirmed by the Senate with no opposition on 17 May 1970.

Nixon was soon faced with two more Supreme Court vacancies when John Harlan and Hugo Black retired in the fall of 1971. Nixon considered nominating Arkansas lawyer Hershel Friday and California intermediate appellate judge Mildred Lillie to the high court. By tradition at the time, potential Supreme Court nominees were first disclosed to the American Bar Association's standing committee on the federal judiciary. When it became apparent that this twelve member committee would find that both were unqualified, Nixon passed over Friday and Lillie,[28] and nominated Lewis Powell and William Rehnquist. Powell was confirmed by an 89-1 vote, and Rehnquist was confirmed 68-22.[1]

Ronald Reagan

When Lewis Powell retired in July 1987, Reagan nominated Robert Bork. Bork was a member of the Court of Appeals for the District of Columbia at the time and known as a proponent of constitutional originalism. Bork lost confirmation by a Senate vote of 42 to 58, largely due to Bork's controversial opinions on constitutional issues and his role in the Nixon Saturday Night Massacre.[29]

Reagan then announced his intention to nominate Douglas H. Ginsburg to the court. Before Ginsburg could be officially nominated, he withdrew himself from consideration under heavy pressure after revealing that he had smoked marijuana with his students while a professor at Harvard Law School.[30] Reagan then nominated Anthony Kennedy, who was confirmed by a Senate vote of 97–0.[1]

George W. Bush

In July 2005, Bush nominated John Roberts as an Associate Justice to replace retiring Justice Sandra Day O'Connor. Following the death of Chief Justice William Rehnquist in September 2005, Roberts was instead nominated to replace Rehnquist as Chief Justice. Roberts was confirmed by the Senate by a vote of 78 to 22.[1]

There was still an appointment to be made for a replacement for Sandra Day O'Connor, and on October 3, 2005 Bush nominated Harriet Miers, a corporate attorney from Texas who had served as Bush's private attorney and as White House Counsel. Miers was widely perceived as unqualified for the position, and it later emerged that she had allowed her law license to lapse for a time. The nomination was immediately attacked by politicians and commentators from across the political spectrum. At Miers' request, Bush withdrew her nomination on October 27, ostensibly to avoid violating executive privilege by disclosing details of her work at the White House.[31] Four days later, Bush nominated Samuel Alito to the seat. Alito was confirmed by a vote of 58–42 on January 31, 2006.[1]

Table

Failed Nominations to the Supreme Court of the United States
Nominee Year Nominated by Outcome[1]
William Paterson 1793 Washington Withdrawn*
John Rutledge 1795 Washington Rejected, 10–14
Alexander Wolcott 1811 Madison Rejected, 9–24
John J. Crittenden 1828 J.Q. Adams Postponed**
Roger B. Taney 1835 Jackson Postponed*
John C. Spencer 1844 Tyler Rejected, 21–26†
Reuben H. Walworth 1844 Tyler Withdrawn**†
Edward King 1845 Tyler Withdrawn**†
John M. Read 1845 Tyler No Action
George W. Woodward 1845 Polk Rejected, 20–29[9]
Edward A. Bradford 1852 Fillmore No Action
George E. Badger 1853 Fillmore Postponed***
William C. Micou 1853 Fillmore No Action
Jeremiah S. Black 1861 Buchanan Rejected, 25–26
Henry Stanbery 1866 A. Johnson Nullified‡
Ebenezer R. Hoar 1869 Grant Rejected, 24–33
George Henry Williams 1873 Grant Postponed***
Caleb Cushing 1874 Grant Withdrawn
Thomas Stanley Matthews 1881 Hayes No Action*[32]
William B. Hornblower 1893 Cleveland Rejected, 24–30
Wheeler Hazard Peckham 1894 Cleveland Rejected, 32–41
John J. Parker 1930 Hoover Rejected, 39–41
Abe Fortas 1968 L.B. Johnson Withdrawn††
Homer Thornberry 1968 L.B. Johnson Nullified†‡
Clement Haynsworth 1969 Nixon Rejected, 45–55
G. Harrold Carswell 1970 Nixon Rejected, 45–51
Robert H. Bork 1987 Reagan Rejected, 42–58
Douglas H. Ginsburg 1987 Reagan Withdrawn
Harriet Miers 2005 G.W. Bush Withdrawn
Notes:
  • * Nomination re-submitted (not necessarily by same President) and confirmed.
  • ** Nomination postponed, not formally withdrawn, but no subsequent action taken.
  • *** Nomination postponed, and formally withdrawn.
  • † Nomination withdrawn, and re-submitted a second time. Postponed with no
    subsequent action.
  • ‡ Nomination voided by the Judicial Circuits Act of 1866 before consideration.
  • †† Nomination of Associate Justice for Chief Justice withdrawn.
  • †‡ Nomination for Associate Justice voided by withdrawal of Fortas' nomination.

References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 "Supreme Court Nominations, present-1789". United States Senate.
  2. 1 2 Timothy L. Hall (1 January 2001). Supreme Court Justices: A Biographical Dictionary. Infobase Publishing. pp. 30–. ISBN 978-1-4381-0817-9.
  3. ↑ Melvin Urofsky; Emeritus Professor of History and Public Policy Melvin Urofsky (17 November 2015). The Supreme Court Justices: A Biographical Dictionary. Routledge. pp. 389–. ISBN 978-1-136-74747-2.
  4. ↑ Schwartz, Bernard (1993). A History of the Supreme Court. New York: Oxford University Press. pp. 32–34.
  5. 1 2 Richard S. Conley (14 December 2015). Historical Dictionary of the U.S. Presidency. Rowman & Littlefield Publishers. pp. 419–. ISBN 978-1-4422-5765-8.
  6. ↑ Richard S. Beth (December 2009). Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009. DIANE Publishing. pp. 5–. ISBN 978-1-4379-1994-3.
  7. 1 2 Paul Finkelman (15 January 2014). The Supreme Court: Controversies, Cases, and Characters from John Jay to John Roberts [4 Volumes]: Controversies, Cases, and Characters from John Jay to John Roberts. ABC-CLIO. pp. 191–. ISBN 978-1-61069-395-0.
  8. 1 2 3 4 Richard S. Beth (December 2009). Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009. DIANE Publishing. pp. 6–. ISBN 978-1-4379-1994-3.
  9. 1 2 3 CQ Press (25 September 2012). Guide to Congress. SAGE Publications. pp. 350–. ISBN 978-1-4522-3532-5.
  10. ↑ CQ Press (6 October 2009). American Political Leaders 1789-2009. SAGE Publications. pp. 51–. ISBN 978-1-4522-6726-5.
  11. ↑ Alfredo Narváez Medécigo (21 November 2015). Rule of Law and Fundamental Rights: Critical Comparative Analysis of Constitutional Review in the United States, Germany and Mexico. Springer. pp. 102–. ISBN 978-3-319-24562-1.
  12. ↑ Charles Gardner Geyh (2 March 2006). When Courts and Congress Collide: The Struggle for Control of America's Judicial System. University of Michigan Press. pp. 194–. ISBN 0-472-09922-1.
  13. ↑ Ulysses Simpson Grant; John Y. Simon (December 1994). November 1, 1869-October 31, 1870. SIU Press. pp. 54–. ISBN 978-0-8093-1965-7.
  14. ↑ Ulysses Simpson Grant; John Y. Simon (December 1994). November 1, 1869-October 31, 1870. SIU Press. pp. 79–. ISBN 978-0-8093-1965-7.
  15. ↑ Members of the Supreme Court of the United States, Official list on SCOTUS website
  16. ↑ Department of Justice biography: George Henry Williams
  17. ↑ Corning, Howard M. Dictionary of Oregon History. Binfords & Mort Publishing, 1956.
  18. ↑ United States Congressional serial set. US Government Printing Office. 1895. pp. 259–.
  19. 1 2 3 4 5 Hogue, Henry B. "Supreme Court Nominations Not Confirmed, 1789-August 2010" (PDF). Congressional Research Service. Federation of American Scientists. Retrieved 22 March 2016.
  20. ↑ Stanley Matthews biography at Sixth Circuit United States Court of Appeals.
  21. ↑ Timothy L. Hall (1 January 2001). Supreme Court Justices: A Biographical Dictionary. Infobase Publishing. pp. 182–. ISBN 978-1-4381-0817-9.
  22. ↑ Kenneth W. Goings (1990). The "Naacp Comes of Age": The Defeat of Judge John J. Parker. Indiana University Press. ISBN 978-0-253-32585-3.
  23. 1 2 Watson, Jr., Richard L. (Sep. 1963). "The Defeat of Judge Parker: A Study in Pressure Groups and Politics". The Mississippi Valley Historical Review 50 (2): 213–234. Retrieved 13 March 2016. Check date values in: |date= (help)
  24. ↑ John Massaro (1990). Supremely Political: The Role of Ideology and Presidential Management in Unsuccessful Supreme Court Nominations. SUNY Press. pp. 36–. ISBN 978-0-7914-0301-3.
  25. ↑ George C. Edwards, III; Stephen J. Wayne (3 July 2013). Presidential Leadership: Politics and Policy Making. Cengage Learning. pp. 384–. ISBN 978-1-285-96118-7.
  26. ↑ Archie Vernon Huff (1995). Greenville: The History of the City and County in the South Carolina Piedmont. Univ of South Carolina Press. pp. 410–. ISBN 978-1-57003-045-1.
  27. ↑ John W. Dean (1 February 2002). The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court. Simon and Schuster. pp. 19–. ISBN 978-0-7432-2979-1.
  28. ↑ Anna R. Hayes (1 June 2009). Without Precedent: The Life of Susie Marshall Sharp. Univ of North Carolina Press. pp. 316–. ISBN 978-0-8078-8781-3.
  29. ↑ Norman Vieira; Leonard Gross (1998). Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. SIU Press. ISBN 978-0-8093-2204-6.
  30. ↑ Martin A. Lee (13 August 2013). Smoke Signals: A Social History of Marijuana - Medical, Recreational and Scientific. Simon and Schuster. ISBN 978-1-4391-0261-9.
  31. ↑ Andrew Wroe; Jon Herbert (18 November 2009). Assessing the George W. Bush Presidency: A Tale of Two Terms. Edinburgh University Press. pp. 47–. ISBN 978-0-7486-3149-0.
  32. ↑ Resubmitted by President Garfield after Hayes' term expired. Confirmed by the United States Senate.

Further reading

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